Joseph and Linda Hoffer v. Zoning Hearing Board of South Annville Township; No. 2016-00723

Civil Action-Law-Land Use-Zoning-Commercial Business-Rental of Property-Nonconforming Use-Doctrine of Natural Expansion

Joseph and Linda Hoffer (“Appellants”) have operated a paving business since 2002 under a lawful nonconforming use at their property zoned in an R-2 medium density residential district, as they purchased the property before the adoption of the zoning ordinance in 2005 establishing the district. Appellants applied for and received a permit to construct a structure on the property identified as a shop/storage building for the paving business existing on the premises, and such a shop/storage building was constructed on the premises. Appellants subsequently rented part of that building to a commercial truck repair business, and they later received a citation directing them to cease all commercial truck repair operations on the premises. The Zoning Hearing Board of South Annville Township (“Zoning Hearing Board”) denied Appellants’ Petition for Appeal. Appellants have appealed that denial, asserting the Zoning Hearing Board erred in determining that the use of the building for commercial truck repairs was an inappropriate use under the permit issued to them and in finding that the use of the building for commercial truck repair is not permitted under the doctrine of natural expansion.

1. The Zoning Ordinance defines “use” as “…the specific purpose of which land or a building is designed, arranged, intended or for which it is or may be occupied or maintained.” Further, the Ordinance provides that no building or other structure shall be erected, constructed, moved, added to or altered or the use therein changed without a permit for the same unless a written order, special exception or variance is issued.

2. Since Appellants never received approval to change or to add an additional use of their property to a commercial truck repair facility, they violated the applicable provisions of the Zoning Ordinances by renting part of the building to a commercial truck repair facility for which a variance was required under the Zoning Ordinance.

3. The doctrine of natural expansion permits a landowner to develop or to expand a business as a matter of right notwithstanding its status as a nonconforming use.

4. The doctrine of natural expansion is limited to lawful nonconforming uses, and a nonconforming use that does not predate the relevant zoning restriction is not a valid nonconforming use.

5. Where a landowner’s nonconforming use predates an ordinance, that landowner has an expectation that he or she reasonably will be able to expand that use, as the landowner may suffer a deprivation of property without due process of law if that expectation of expansion is thwarted. However, where the nonconforming use does not predate the ordinance, the landowner does not enjoy the same expectation of expansion.

6. Where a zoning ordinance permits a change in nonconforming uses through a special exception or similar mechanism, there is no legal right to expand a new use and any request to modify the new use is governed by the applicable zoning ordinance.

7. An accessory use cannot serve as the basis for the establishment of a nonconforming principal use of the property.

8. The lawful nonconforming use of the property as a paving business that allows Appellants to store, repair and maintain vehicles used in their paving business in the building as an accessory use to the paving business does not expand into automatic approval for a commercial leasing business, and the proposed use is not a natural expansion of the permitted nonconforming paving business.

L.C.C.C.P. No. 2016-00723, Opinion by Bradford H. Charles, Judge, January 27, 2017.

Frederick S. Wolfson, Esquire, and Andrew J. Race, Esquire, for Appellants

Jason M. Hess, Esquire, for Appellee

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL ACTION – LAW NO. 2016-00723

JOSEPH HOFFER, AND LINDA HOFFER

Appellants

v.

ZONING HEARING BOARD OF SOUTH ANNVILLE TOWNSHIP,

LEBANON COUNTY, PENNSYLVANIA

Appellee

ORDER OF COURT

AND NOW, this 27^th day of January, 2017, upon consideration of the parties’ briefs, oral argument, and after a thorough review of the file, it is hereby Ordered that Appellants’ Appeal of the decision of the South Annville Township Zoning Hearing Board is DENIED.

BY THE COURT:

BRADFORD H. CHARLES, J.

APPEARANCES:

Frederick S. Wolfson, Esq. FOR APPELLANTS

Andrew J. Race, Esq.

REILLY WOLFSON

Jason M. Hess, Esq. FOR APPELLEE

MORGAN, HALLGREN,

CROSWELL & KANE, P.C.

OPINION BY CHARLES, J., January 27, 2017

In this case, Joseph and Linda Hoffer (hereafter “APPELLANTS”), allege that the South Annville Township Zoning Hearing Board (hereafter “ZONING BOARD”) has attempted to bar a “natural expansion” of their shop and storage building. In response, the ZONING BOARD has declared that APPELLANTS’ proposed use far transcends the existing permitted use of the property. After a thorough review of the file, this Court deems the lawful non-conforming use has always been a paving business. Therefore, renting out a portion of a shop and storage garage to a commercial trucking business cannot be a “natural expansion” of the approved of nonconforming use. For the reasons set forth within, we will deny APPELLANTS’ Appeal.

I. FACTS

Since 2002, the APPELLANTS have been operating a paving business, Hoffer Paving, at 400 Mount Pleasant Road (hereafter “PREMISES”) in South Annville Township, Pennsylvania. The PREMISES is located in the R-2 Medium Density Residential District (hereafter “R-2 Zone”)(Zoning Ordinance, Part 7). A paving business is not among the permitted uses in the R-2 Zone; however, the paving business is a lawful nonconforming use because APPELLANTS purchased the PREMISES in 2005 before the Zoning Ordinance was adopted.

During March 2014, the APPELLANTS applied for and received a Zoning Permit to construct a structure identified as a “shop/storage building” on the PREMISES. The permit application indicated that the intended usage for the shop/storage building was for the “Commercial- Paving Company” existing on the PREMISES. The application never mentioned or requested the use of the PREMISES to include anything other than the current approved non-conforming use, a paving business. Thereafter, a Certificate of Occupancy was issued for the shop/storage building on January 22, 2015 under the 2009 International Building Code (IBC) 20, under Use Group S1. With such approval, a three-bay shop/storage building (hereafter “GARAGE”) was built on the PREMISES. The APPELLANTS began using one bay of the GARAGE to store and work on their paving trucks and recreational vehicles.

Shortly thereafter, the APPELLANTS rented out the remaining two (2) bays to a commercial truck repair business, Pit’s Truck Repair. This action prompted an Enforcement Notice Letter, dated December 17, 2015, from Zoning Officer, Kimberly A. Spang, of the Lebanon County Planning Department. Officer Spang’s letter directed cessation of all commercial truck repair operations on the PREMISES for violations of Sections 702 and 1702 of the Zoning Ordinance.

In response, the APPELLANTS filed a timely Petition for Appeal to the ZONING BOARD of South Annville Township. On March 8, 2016, the ZONING BOARD held a hearing regarding the appeal. The ZONING BOARD unanimously denied the Appeal, and issued a written decision containing its findings of fact and conclusions of law (hereafter “ZHB Decision”). Thereafter, on May 10, 2016, a Land Use Appeal was filed with the Court of Common Pleas of Lebanon County. No new hearing was conducted. This matter is now ripe for disposition.

II. ISSUES

The APPELLANTS submitted the following issues to this Court:

(1) Whether the ZONING BOARD erred in determining that the use of the GARAGE for commercial truck repair is an inappropriate use
under the existing zoning permit?

(2) Whether the APPELLANTS Land Use Appeal should be granted
because the use of the GARAGE for commercial truck repair
qualifies under the Doctrine of Natural Expansion?

III. DISCUSSION

A. Zoning Permit

APPELLANTS allege that use of the GARAGE for commercial truck repair is an appropriate, legal nonconforming “use” allowable under their zoning permit. They contend that the building designation as shop/storage listed on the Zoning Permit implies that the Zoning Officer was approving a principal use as a commercial truck repair business because that is what shop/storage buildings are generally designed for. APPELLANTS argue that their usage of the building is in-line with its accepted industry use.

APPELLANTS argue that it was always their intention to operate a repair shop for Hoffer Paving’s commercial trucks. (Appellant’s Brief at 4). The repair of Hoffer Paving commercial trucks is not an issue to this Court as it falls under the purview of “accessory use” activities. They also argue that the ‘use therein’ never changed because it was additionally always their intention to rent out the two remaining GARAGE bays for the repair of commercial trucks by Pit’s Truck Repair. Id. Intentions, without a permit, can only go so far. APPELLANTS contend that that since the Zoning Permit allowed for the “use” of a “shop/storage” building, without ever specifically defining “shop,” their actions fell safely within the definition’s parameters. Id.

The South Annville Township Zoning Ordinance defines “use” as, “[t]he specific purpose of which land or a building is designed, arranged, intended or for which it is or may be occupied or maintained.” Section 1702 of the South Annville Township Zoning Ordinance demonstrates why the only approved “use” on the PREMISES is a commercial paving company, with a permitted accessory use of the GARAGE for the incidental needs of the paving business. Specifically, Section 1702 states:

No building or other structure shall be erected, constructed, moved, added to, altered, nor the use therein changed without a perfect therefor issued by the administrative official except in conformity with the provisions of this Chapter, unless he receives a written order from the Zoning Hearing Board in the form of an administrative review, Special Exception, or variance as provided by this Chapter.

South Annville Township Zoning Ordinance § 1702.

The Zoning Officer testified that the nonconforming use would have remained legal if the APPELLANTS remained the sole “users” and beneficiaries of the GARAGE, limiting the repair of commercial trucks to those operated by Hoffer’s Paving. (N.T. 18). His contention was that the APPELLANTS never received zoning approval to change or add an additional use of the PREMISES to include a “commercial truck repair facility” (N.T. 17-17-2, 19:16-22). The GARAGE was approved as a legal, non-conforming use, to be exclusively used by Hoffer’s Paving Company and its accessory needs. (N.T. 18:2-8).
We agree with the Zoning Officer’s observations to conclusions. When APPELLANTS leased their building to Pitt’s Truck Repair, they became commercial landlords. This violated Sections 702 and 1702 of the Zoning Ordinance. Thus, APPELLANTS’ actions required a variance from the applicable R-2 Zoning District approval requirements. Therefore, the Zoning Officer’s decision to declare APPELLANTS to be in violation of the Zoning Ordinance was not erroneous.

B. The Doctrine of Natural Expansion

The APPELLANTS allege that the use of their GARAGE as a commercial truck repair business was a “natural expansion” of their legal nonconforming use through the Doctrine of Natural Expansion. The doctrine of natural expansion “permits a landowner to develop or expand a business as a matter of right notwithstanding its status as a nonconforming use.” Pappas v. Zoning Board of Adjustment, 589 A.2d 675, 677 (Pa. 1991). However, “the doctrine of natural expansion is limited to lawful, i.e., valid, nonconforming uses,” and “a nonconforming use that does not predate the relevant zoning restriction is not a valid nonconforming use.” Hitz v. Zoning Hearing Board of South Annville Township, 734 A.2d 60, 67 (Pa.Cmwlth.1999) (emphasis in original). The Pennsylvania Commonwealth Court has explained:

The effect of limiting the doctrine of natural expansion to valid nonconforming uses is to restrict constitutional protection only to nonconforming uses that predate restrictions imposed by a zoning ordinance. The rationale behind this limitation is simple. Where a landowner’s nonconforming use predates the ordinance, that landowner has an expectation that he or she will be able to reasonably expand that use. If that landowner’s expectation of expansion is thwarted, then the landowner may suffer a deprivation of property without due process of law. In contrast, where the nonconforming use does not predate the ordinance, but is granted as a matter of grace or error, the landowner does not enjoy the same expectation of expansion. Thus, the landowner is not deprived of property without due process of law, and the constitutional doctrine of natural expansion does not apply.

Hitz, supra at 68 (citations and footnotes omitted) (emphasis in original).
Where a zoning ordinance permits a change in nonconforming uses through a special exception or similar mechanism, there is no legal right to expand the new use; instead, any request to modify the new use is governed by the applicable zoning provisions. William Chersky Joint Enterprises v. Board of Adjustment, 231 A.2d 757, 759 (Pa. 1967). The only reason APPELLANTS are permitted to use the PREMISES for the current lawful nonconforming use of a paving business is because of the special approval granted by the Board in 2014. The only action granted by the ZONING BOARD was for APPELLANTS to operate a paving business – not a separate truck repair business.

Section 702.4 of the Zoning Ordinance includes as a permitted use in the R-2 Zoning District: “[a]ccessory uses as provided for in Part 14 of this Chapter.” The Township’s Zoning Ordinance defines accessory use as “a use customarily incidental and subordinate to the principal use or building and located on the same lot with such principal use or building.” Zoning Ord., § 702.4. This lawful nonconforming use as a paving business allows the APPELLANTS to store, repair, and maintain vehicles used in their paving business, within the shop/storage GARAGE, as an accessory use to their paving business needs. The permitted accessory use of the shop/storage building does not expand into automatic approval for a commercial leasing business.

The APPELLANTS cite Limley v. Zoning Hearing Bd. Of Port Vue Borough, 625 A.2d 54, 55 (Pa. 1993) as an analogous situation. This is not the case. In Limley, the lawful nonconforming use was a private club which sold food and beverages. Id. The landowners in that case successfully argued that the Doctrine of Natural Expansion allowed them to expand their use to a restaurant open to the public. Id. Limley would be analogous if the APPELLANTS’ lawful nonconforming use were a private truck repair business, and they wanted to open that repair business to the public. However, the lawful nonconforming use is a paving business. We see no logical connection between a paving operation and a truck repair operation, which would allow us to apply the Doctrine of Natural Expansion. Accordingly, we reject APPELLANT’s argument that Limley requires us to apply the Doctrine of Natural Expansion to this case. The relationship between a paving business and a commercial truck repair shop is simply too attenuated.

An accessory use cannot be the basis for the establishment of a nonconforming principal use. Ashline v. Bristol Twp. Zoning Bd. of Adjustment, 182 A.2d 531, 533 (Pa. 1962) citing Stokes v. Zoning Board of Adjustment, 167 A.2d 316 (Pa. 1961). We find Stokes to be particularly compelling. Stokes, involved a construction equipment rental business, with an accessory blacksmith shop to repair rented equipment. The property owner converted his business into a full scale commercial repair shop for construction equipment. Id. Unlike the APPELLANTS in the present matter, the property owner in Stokes applied for permission from the local zoning board for the conversion. Id. However, the ZONING BOARD denied his permit request. The property owner appealed the denial all the way to the Pennsylvania Supreme Court, which held that a nonconforming accessory use cannot become the basis for a nonconforming principal use. Id.

As in Stokes, APPELLANTS’ desire to lease space for a commercial truck repair business is a “nonconforming use.” The proposed use is not a “natural extension” of the permitted nonconforming paving business. As such, the doctrine of natural expansion simply does not apply. Therefore, we reject APPELLANTS’ argument that the ZONING BOARD erred by failing to recognize the commercial truck repair business as a “natural expansion” of APPELLANTS’ existing nonconforming use. For this reason also, we reject the appeal of APPELLANTS.

IV. CONCLUSION

After examining the record in this case carefully, we cannot discern any error on the part of the ZONING BOARD. We agree with the ZONING BOARD’s conclusion that a commercial lease of APPELLANTS’ property for a truck repair business represents a completely different use of the property. We also agree with the ZONING BOARD that the new proposed use violates the zoning ordinance. Because we have rejected APPELLANTS’ attempt to rely upon the so-called doctrine of natural expansion, we are logically required to also affirm the ZONING BOARD’s decision. An Order to do so will be entered today’s date.

1) Although, APPELLANTS point out that Pit’s Truck Repair also repaired Hoffer Paving’s commercial trucks too, we cannot ignore that commercial truck repair was being completed for Pit’s Truck Repair’s own customers (N.T. 61:16-23). Furthermore, the evidence demonstrates to us that Pit’s Truck Repair wanted to establish their own separate identity from Hoffer’s Paving Company by placing commercial signage on the outside wall of the GARAGE, advertising their commercial truck repair business to the public.

2) Because APPELLANTS’ current use of the subject property, specially approved in March 2014, does not predate the applicable zoning restrictions, the R-2 District Ordinance’s terms; specifically, Sections 702.4 and 1702 govern.